James v. State of Nebraska et al

Filing 172

ORDER - Plaintiff's motion in limine as to expert Karen Stricklett (Filing No. 150 ) is granted to the extent that Ms. Stricklett will not make any reference to the website "AverageSurgeonSalary.com," either in her testimony or in her expert report. In all other respects, plaintiff's motion in limine is denied. Defendants' motion in limine as to expert James Menard (Filing No. 146 ) is granted to the extent that Mr. Menard's supplemental report d ated April 19, 2012, will not be received in evidence. In all other respects, defendants' motion in limine is denied. Plaintiff's uncontested motion in limine (Filing No. 153 ) is granted. Ordered by Senior Judge Lyle E. Strom. (TEL)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
ELAINE JAMES, M.D.,

)
)
Plaintiff,
)
)
v.
)
)
THE STATE OF NEBRASKA;
)
NEBRASKA BOARD OF MEDICINE & )
SURGERY; NEBRASKA DEPARTMENT )
OF HEALTH AND HUMAN SERVICES, )
DIVISION OF PUBLIC HEALTH,
)
an agency in the State of
)
Nebraska,
)
)
Defendants.
)
______________________________)

8:09CV112

ORDER

This matter is before the Court on the parties’ motions
in limine (Filing Nos. 146, 150, and 153).
argument on the motions on June 7, 2012.

The Court heard oral

After considering the

parties’ motions, briefs, submissions of evidence, oral argument,
and the relevant law, the Court rules as follows.
Plaintiff filed a Daubert motion (Filing No. 150, with
brief, Filing No. 151, and index of evidence, Filing No. 149)
objecting to the testimony of defendants’ expert Karen
Stricklett, vocational consultant, as to the projected future
income of plaintiff Elaine James, M.D.

Defendants filed a brief

in opposition to the motion (Filing No. 157).

As explained at

the hearing on the motion, the Court finds that Ms. Stricklett is
qualified, according to the requirements of Federal Rule of
Evidence 702, to render an opinion as to the projected future

income of Dr. James.

However, Ms. Stricklett will not be allowed

to make any reference to the website “AverageSurgeonSalary.com,”
either in her testimony or in her expert report.

In all other

respects, plaintiff’s motion in limine will be denied.
Defendants filed a Daubert motion (Filing No. 146, with
brief, Filing No. 147, and index of evidence, Filing No. 148)
objecting to the testimony and expert reports of plaintiff’s
expert, James Menard, as to the projected future income of Dr.
James.

Dr. James filed a brief in opposition to the motion

(Filing No. 160, with index of evidence, Filing No. 159), to
which defendants replied (Filing No. 163).

Federal Rule of

Evidence 702 requires, among other things, that “[a] witness who
is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or
otherwise if: . . . the testimony is based on sufficient facts or
data . . . .”

Fed. R. Evid. 702.

As an initial matter, although Mr. Menard’s methodology
as a Certified Public Accountant (CPA) may differ from those of a
vocational consultant like Ms. Stricklett, the Court finds that
Mr. Menard is qualified to render an opinion as to Dr. James’
projected future income.
As to the factual basis of his opinion, the Court
recognizes that Mr. Menard has admittedly based his projected

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future income of Dr. James on but two pieces of data:

first, a

single job listing for which she is arguably qualified; and
second, an opinion rendered by a physician during a phone call to
one of Dr. James’ counsel’s staff.1

The Court finds that the

jury is capable of determining the weight to be given to an
opinion by consideration of the facts underlying such an opinion.
Defendants also object to Mr. Menard’s supplemental,
updated report dated April 19, 2012.

The Fifth Amended Final

Progression Order states that Dr. James’ expert reports were due
to defendants on or before January 17, 2012.

Menard’s first

expert report was timely, dated November 23, 2010.
updated report is dated April 19, 2012.

Menard’s

Defendants argue that

the updated report is untimely and should be excluded on that
basis.
Dr. James states that she has a duty to supplement the
report with updated information per Federal Rule of Civil
Procedure 26, which states,
For an expert whose report must be
disclosed under Rule 26(a)(2)(B),
the party’s duty to supplement
extends both to information
included in the report and to
information given during the
expert’s deposition. Any additions
or changes to this information must

1

Defendants state that this second piece of data is
inadmissible hearsay. The Court notes that much of the data
relied upon by experts is hearsay, and the Court will not reject
Mr. Menard’s opinion on that basis.
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be disclosed by the time the
party’s pretrial disclosures under
Rule 26(a)(3) are due.
Fed. R. Civ. P. 26(e)(2).

However the Fifth Amended Final

Progression Order states, “Supplementation of these [expert
witnesses’] disclosures, if originally made prior to these
deadlines, shall be made on these deadlines as to any information
for which supplementation is addressed in Fed. R. Civ. P. 26(e)”
(Filing No. 131, at 2), which was January 17, 2012, for Dr.
James.

Therefore, defendants’ motion in limine is granted to the

extent that Mr. Menard’s supplemental report dated April 19,
2012, will not be received in evidence.

In all other respects,

defendants’ motion in limine will be denied.
Finally, plaintiff filed another motion to exclude
evidence (Filing No. 153) to which defendants do not object.
Therefore, the motion will be granted.

Accordingly,

IT IS ORDERED:
1) Plaintiff’s motion in limine as to expert Karen
Stricklett (Filing No. 150) is granted to the extent that Ms.
Stricklett will not make any reference to the website
“AverageSurgeonSalary.com,” either in her testimony or in her
expert report.

In all other respects, plaintiff’s motion in

limine is denied;
2) Defendants’ motion in limine as to expert James
Menard (Filing No. 146) is granted to the extent that Mr.

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Menard’s supplemental report dated April 19, 2012, will not be
received in evidence.

In all other respects, defendants’ motion

in limine is denied; and
3) Plaintiff’s uncontested motion in limine (Filing No.
153) is granted.
DATED this 8th day of June, 2012.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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